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Earmarking Pigs in Conference Poke Was Not the Way to Go

House Democrats and Republicans deserve kudos for reaching an agreement on how to handle earmarks in appropriations bills for the remainder of the session — in the originally reported bills with full transparency.

Republicans were right to raise a big stink over the majority's announced plans to wait until House-Senate conference committees to insert Members' requested pork projects in appropriations bills. And Democrats deserve credit for recognizing (after considerable prodding by the GOP and press) that they were undermining their own reform mantel by going back on their promise of upfront earmark transparency.

When I last visited the subject in this space (April 17, 2006), I advised against a provision in the House version of earmark reform because it did not deal effectively with earmarks that originate in conference committees. The House bill only required that the earmarks and their sponsors be listed in the joint explanatory statement of the managers of conference, and thus did not discourage the practice.

The Senate version, on the other hand, allowed for points of order to strike such provisions from conference reports. When it became apparent that the House and Senate lobby-earmark reform bills were going nowhere, the House adopted a special rule in September applying the earmark transparency rules to itself for the remainder of that Congress.

Democrats, meanwhile, made lobby and earmark reform a top priority in their campaign to take control of the House, and they won. Instead of waiting for another bill, as the Senate did, House Democrats pushed through an earmark transparency rule on the opening day of this Congress. Like their Republican predecessors, however, they chose to ignore problems that would arise if earmarks originated in conference reports, which are not amendable.

Yes, House rules already exist prohibiting both scope violations and new unauthorized and legislative provisions in conference reports, and these rules ordinarily would catch most earmarks. However, the House Rules Committee routinely recommends waiving all points of order against conference reports and the House unfailingly agrees to such waivers. (The new agreement reportedly will allow points of order against conference reports containing new earmarks, subject to a 20-minute debate and House vote on whether to proceed with consideration of the conference report anyway.)

Given the new earmark transparency rule, one could reasonably predict the legislative equivalent of fluid dynamics: Just as liquids flow along paths of least resistance, so too will Members' district projects avoid obstacles to their progress through the legislative labyrinth. Unlike the laws of physics, however, these avoidance mechanisms do not occur inexorably. Human beings still control the legislative flow of things.

House Appropriations Chairman David Obey (D-Wis.) originally announced that no earmarks will appear in the 12 regular appropriations bills reported from his committee. Instead, they wouldn't legislatively materialize until they are safely tucked into conference reports, beginning in September, after a public vetting of projects in the Congressional Record before the August recess.

I was sympathetic to his explanation that the committee staff had been so overwhelmed putting together the revised continuing resolution and Iraq supplemental bill earlier this year that it just hadn't had time to sort through the 32,000 pending earmark requests from Members. Let's face it: Attempting to organize a pigpen is a daunting if not absurd task to begin with (and we're talking truckloads of squealing porkers here). But birthing earmarks in a conference committee poke would have been too tempting a precedent to follow the next time around, especially considering it's something Congress had been doing on some appropriations bills for more than a decade. Obey is to be commended on his willingness now to take the extra time necessary to get the earmark process right from the start rather than backloading it all into conference reports.

One of the arguments used for going the conference route was that efforts to strike earmarks from appropriations bills always failed anyway, so why subject them to separate votes? The argument may have some superficial appeal, but it is insulting to Members who feel genuinely appalled by what they consider to be wasteful spending and to their rights as coequal Members to fully participate in the process. Being on the losing side of a cause is no justification for denying that cause its day on the floor.

There was a time when House Members were in a high dudgeon over the tendency of the other body to originate things in conference. Much rhetoric was expended on referring to conference committees as "the third house of Congress" because they would make new law not considered by either chamber. Consequently, the House attempted to tighten its rules to deal with such scope violations through new points of order that in effect could kill a conference report.

When that proved both impractical and unpopular, the two chambers agreed on a middle course, and that was to report the offending Senate provisions as amendments in disagreement, to be separately voted after the rest of the conference report was adopted.

This is a practice that Reps. Obey, David Price (D-N.C.), Barney Frank (D-Mass.), Tom Allen (D-Maine) and 128 co-sponsors called for resurrecting in their House reform package in the 109th Congress (with leadership blessing). Obviously, Senate cooperation would be required since in recent years it has been sending a single substitute to conference on each appropriations bill instead of separately numbered Senate amendments.

I'm more dubious about the advisability of reviving the practice, though, since it is a convenient way to facilitate more scope and legislative violations at a point in the process when no Member has any idea what kind of further amendments are being included in a motion. Everyone should feel more comfortable about dealing with these issues up front and in the sunshine. The House is back on the right track.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.